Legal Alert

Congress, White House Signal Increased Antitrust Enforcement

by Leslie E. John, Matthew I. Vahey, Peter F. Andrews, Brent R. Heberlee, and Kenneth M. Jarin
June 30, 2021

Summary

Increased antitrust enforcement is a hot topic in the nation’s capital this summer, with the House Judiciary Committee approving a package of legislation that would reshape the antitrust laws last week and an executive order aimed at more aggressive enforcement expected from the White House in the coming weeks.

The Upshot

  • The package of antitrust legislation, which advanced out of the Judiciary Committee with support from most Democrats and a few Republicans, broadly targets “Big Tech” with a series of changes to the legal landscape in order to curb their perceived power.
  • Given the cross-partisan mix of support and opposition in committee, the fate of the legislation in the House and the Senate remains uncertain.
  • On a separate track, the White House is considering an executive order that would direct various federal agencies to update their antitrust guidance, suggesting specific actions that the agencies could take to ramp up efforts to increase competition in a wide variety of markets.

The Bottom Line

While any antitrust legislation faces a long road through Congress, the Executive Branch has signaled its intent to change the regulatory landscape and ramp up antitrust enforcement in a wide range of markets.  Attorneys in Ballard Spahr’s Antitrust and Competition and Government Relations and Public Policy group are available to advise businesses on the effects of these changes on their current practices and competitive arrangements.

Increased antitrust enforcement is a hot topic in the nation’s capital this summer, with the House Judiciary Committee approving a package of legislation last week that would reshape the antitrust laws and an executive order aimed at more aggressive enforcement expected from the White House in coming weeks.

The package of antitrust legislation, which advanced out of the Judiciary Committee with support from most Democrats and a few Republicans, broadly targets “Big Tech”companies such as Apple, Amazon, Facebook, and Google that legislators contend have substantial market powerwith a series of changes to the legal landscape which would curb their power.  The six bills include:

  • H.R. 3826, which aims to prevent large online platforms from completing mergers that would enhance monopoly power;
  • H.R. 3825, which aims to prevent such platforms from using their market position to distort competition in markets relying on that platform;
  • H.R. 3816, which would create a nondiscrimination regime for such platforms—i.e., barring conduct that advantages the platform operator’s products over other businesses;
  • H.R. 3849, which gives the Federal Trade Commission new authority to promulgate rules to promote interoperability—the extent to which systems and devices can share and interpret data—and data portability;
  • H.R. 3843, which would increase filing fees on large mergers in order to provide resources to the Department of Justice and Federal Trade Commission; and
  • H.R. 3460, which would include antitrust actions filed by state attorneys general in the provision excepting antitrust actions filed by the United States from the multidistrict litigation venue provision, 28 U.S.C. § 1407(g).

The package of bills now heads to the full House for debate and consideration. Given the cross-partisan mix of support and opposition, the fate of the legislation there remains uncertain—let alone in the Senate, where 60 votes would be needed to overcome a potential filibuster.

While those bills await consideration, Politico reports that the White House is considering an executive order that would direct various federal agencies to update their antitrust guidance, suggesting specific actions that the agencies could take to ramp up efforts to increase competition in a wide variety of markets. Specifically, reports indicate that the order would suggest that the Department of Justice and FTC adopt revised guidance on corporate mergers, including for vertical mergers—mergers between companies that are not direct competitors.

The order also would target deals between financial institutions and competition at airports, among other areas.

However, the executive order is yet to be presented to President Biden, and a spokesperson said in a statement that he has not made any final decisions.

The move is part of a broader pattern of a more aggressive approach to antitrust taken by the Biden administration, alongside the appointment of antitrust scholar Lina Khan as FTC chair.  President Biden is yet to appoint a new head of DOJ’s Antitrust Division, which would send a further signal of the administration’s intentions in the area.

While any antitrust legislation faces a long road through Congress, through its appointments and an anticipated executive order, the Executive Branch has signaled its intent to change the regulatory landscape and ramp up antitrust enforcement in a wide range of markets. Attorneys in Ballard Spahr’s Antitrust and Competition and Government Relations and Public Policy groups are available to advise businesses on the effects of these changes on their current practices and competitive arrangements.

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